Terms of Service

Terms of Service

Effective: May 2016

1. General

These terms of service (as updated from time to time, the “Terms”) govern your access to and use of the Dubsmash Service (as defined below) and any sound recordings, videos, information, text, graphics or other content materials uploaded, downloaded or appearing on the Service whether utilised via the Dubsmash mobile app (the “App”) or via the Dubsmash website available at
http://upload.dubsmash.com/
(the “Website”), (the Website and the App together the “Service”). Please read these Terms carefully before downloading or using the Service. By accepting these Terms, you agree to be bound by them. If you do not understand the Terms, or do not accept any part of them, then you should not use the Service. The Service is provided by Mobile Motion GmbH (“we”, “us” “our” and “Mobile Motion”) whose place of business is at Karl-Liebknecht-Str. 5, 10178 Berlin, Germany.

2. The Service

2.1. The Service is a hosting service which allows registered users to upload, post and share sound recordings, and to create audio-visual content combining self-created videos and own or third party sound recordings, which will be stored by us at the direction of registered users, and may be shared and made publicly available by registered users. As part of the Service, we may regularly update you on new content, features as well as to provide you with certain service announcements and administrative messages. We will further give you the possibility to connect with and message your friends who are also using the Service. We will also alert you to local content which is connected to the area where you currently are situated when you have logged in the Service.

We may, from time to time, release new versions of our App, release new tools, or introduce new services and/or features for the Service, which will be subject to these Terms, and any additional terms of service as may apply to such additional versions, tools, services, or features.

2.2. We reserve the right to suspend, discontinue, withdraw, take down or amend all or part of the Service and all or part of the content available on the Service at any time to, for example, reflect changes to the law or new technical developments, temporarily or permanently. Any changes will take into account your reasonable interests, and we shall use our reasonable endeavours to notify you thereof in advance. Access to all or part of the Service may be restricted from time to time to allow for repairs, maintenance or updating. This may result in you not being able to use the Service until you have downloaded the latest version and accepted any new terms.

3. Access/Use of the Service

3.1. You can access the Service either:

Via the App or via the Website.

3.2. To use the service you must be eighteen (18) years old or older. By signing up for the Service you promise to us that you accept these Terms and that: (a) you are 18 years of age or over, or (b) you are 13 years of age or over and have permission to use the Service from your parent or legal guardian. If we reasonably believe that you do not sufficiently fulfil these criteria, we may suspend your use of the Service until you have provided us with acceptable proof of age.

3.3. We advise parents who permit their children to use the Service to be aware that the Service is not intended for children under 18. The content made available on the Service is user generated and may not be suitable for children.

3.4. To access the Service, you will need to register with us. To register, you must provide us with certain information about yourself, such as your email address, birthday, a username and password of your choosing. In some cases (e.g. for some operating systems), you also need to allow us to access your address book and enable the geolocation function in order for us to provide the service. Your username will appear alongside any content you upload to the Service. You must make sure that your username complies with these Terms. Your registration with us is subject to our confirmation and will become valid when we either confirm your registration, or activate your account.

3.5. You are responsible for your account with us and any activity that takes place on your account, whether or not such activity was authorised by you. You must ensure that the details you provide to us are correct and kept up to date and that your password is, and remains, secure and confidential. You must inform us of any changes to the details you provided when registering with us. Your account is personal for your own, non-commercial use. You must not sell or transfer, or offer to sell or transfer, your account to any third party. If you want to use the Service or any content other than expressly permitted herein, including in a commercial way, you will need permission and need to get in touch with us first (e.g. via the “partner section” on our website)
www.dubsmash.com/partner.

3.6. We reserve the right to suspend or remove your account, cancel, reassign or disable your username or password and/or prohibit your use of the Service, without prior notice, if we (in our reasonable discretion) believe there may have been a breach of security or if activities occur on your account that we believe breach these Terms.

3.7. Access to and use of the Service requires a compatible device and internet connection. Although we are working to ensure that the Service is compatible across various devices, we cannot guarantee that the Service will work with all devices.

3.8. It is your responsibility to ensure that your device complies with the requirements. Your use of the Service may vary in functionality, availability and quality depending on the type of the device and the operating system that it uses and Mobile Motion accepts no responsibility for any lack of functionality that is due to your equipment (including your device, internet connection, operating system or settings and software).

3.9. It is your responsibility to pay for all costs and expenses that you may incur while using the Service (including, but not limited to, all telephone call or line charges or Internet data service access charges).

4. User-Generated Content

4.1. You are solely responsible for your use of the Service and any sound recordings (“Sound Recordings”), dubs, videos, words, information, messages and any other content that you upload to or create via the Service, whether privately transmitted or made publicly available (together, “User Content”). Any User Content is owned and controlled solely by you.

4.2. User Content that you upload to the Service is made public to other users of the Service. By uploading User Content, you understand and agree that your username will be made public in relation to each User Content and that you grant Mobile Motion and our affiliates (within the meaning of Sec. 15 et seq. of the German Stock Corporation Act – AktG) the right to display and otherwise use your username in connection with the User Content.

By uploading any User Content to the Service, you grant Mobile Motion a worldwide, non-exclusive, royalty-free, transferable licence (with the right to sub-licence) to use, reproduce, distribute, share, display, adapt, prepare derivative works of, compile, make available, communicate to the public and perform any User Content that you upload to the Service, in connection with the provision of the Service, including without limitation for promoting and redistributing part or all of the Service in any media, along with your username, in accordance with these Terms and our
Privacy Policy.

In addition, you grant to each user of the Service, a worldwide, non-exclusive, royalty-free licence to access your User Content through the Service, and to use, reproduce, distribute, share, display, adapt, prepare derivative works of, compile, make available, communicate to the public and perform such User Content, along with your username, to the extent permitted by the functionality of the Service and in accordance with these Terms and our
Privacy Policy.

You may terminate the above licenses granted by you in User Content by deleting your User Content from the Service. Please note however that if any User Content has at that time already been used in connection with any derivative works, or has been used (including shared or reproduced) in connection with any other users’ content or textual comments, the above licenses granted by you in that regard will remain valid and irrevocable, but are otherwise without prejudice to your ownerships rights, which are retained by you as set out in Section 4.1 above.

4.5. You understand and agree to comply with all applicable laws in relation to your use of the Service and User Content. In particular, and without limitation, you shall at all times ensure that your User Content does not: contain any content, information or material that infringes the rights of any third party including copyright, trade mark rights, confidential information or rights of privacy; violate any applicable laws; contain any content or material that is offensive, abusive, defamatory, libellous, derogatory, bullying, discriminatory, obscene, violent, sexually explicit, indecent, which promotes or encourages violence, terrorism or any other illegal acts or which is likely to harass, upset, embarrass, alarm, inconvenience or annoy any person; in any way promote or incite anyone to commit or assist in any unlawful or criminal activity or anti-social behaviour, or encourage activities which could endanger the safety or wellbeing of others; identify any person without their consent, or the consent of their parent or legal guardian if they are under 18 years of age; disclose anyone’s personal contact details or invade their privacy; contain any viruses or other malicious or harmful programs; or include any advertising or promotional messages.

4.6. Furthermore, you understand and agree that you will not do or attempt to do, or cause any third party to do or attempt to do, any of the following in connection with your use of the Service: Use the Service or User Content available on the Service other than as expressly permitted by these Terms and the normal functionality of the Service; transmit other people’s personal and/or confidential information, such as credit card numbers, account passwords etc.; use the Service for any illegal purpose, in an unlawful manner or in any manner inconsistent with these Terms; impersonate or pretend to be anyone else through your use of the Service; use the Service in a way that could damage, disable, overburden, impair or compromise the Service, our systems or security or interfere with other users; use any programme or other means, including but not limited to scripts, spiders and robots, whether manually or automatically, to extract, download, index, mine, scrape, reproduce or circumvent the presentation, operation or intended use of the Service or any features or functions of it; copy, modify, decompile or otherwise interfere with any part of the Service; make alterations to, or modifications of, the whole or part of the Service, or permit the Service or any part of it to be combined with, or become incorporated in, any other programs; hack into, or insert malicious code, including viruses, or harmful data, into, the Service; or infringe our intellectual property in relation to your use of the Service.

4.7. You acknowledge and agree that we are merely a passive conduit and hosting service for User Content and that we play no active role in the distribution or presentation of User Content.

4.8. We are under no obligation to monitor User Content posted on the Service and we cannot and do not take any responsibility for such User Content, nor do we endorse, support or guarantee the completeness, accuracy or reliability of any User Content or communications posted via the Services or opinions expressed therein. Use of or reliance on any User Content or materials posted via the Service or obtained by you through the Service is at your own risk.

4.9. Subject to Sec. 13 below, Mobile Motion shall not be liable in any way for User Content, including, but not limited to, any errors or omissions contained therein, or any loss or damage of any kind incurred as a result of the use of any User Content posted, emailed, transmitted or otherwise made available via the Service or broadcast elsewhere.

4.10. If we, in our sole discretion, believe that there has been a breach of these Terms, or we have reasonable grounds to believe that you are likely to breach these Terms, we may take any action we think is necessary to protect the Service and its users. We may withdraw your right to use the Service, remove your User Content from the service, take legal proceedings against you (for example, if we have had to pay damages because of your User Content, we will claim to get that amount back) and other action we deem appropriate.

5. Licence of the Service

Subject to your compliance with these Terms, Mobile Motion grants you a limited, non-exclusive, personal, worldwide, royalty-free, non-transferable, non-assignable, non-re-saleable, and freely revocable licence to download the App and/or access and use the Service, subject to these Terms and the
Privacy Policy.

6. Mobile Motion Rights

As between you and us, all rights, titles and interests in and to the Service, including any and all trademarks and other intellectual property rights in and to the Service (excluding any User Content and other content uploaded or otherwise provided by users, subject only to the limited revocable rights granted hereunder) are and will remain the exclusive property of Mobile Motion and its licensors. If you plan to use any of the above mentioned items owned by us, you must read and accept our Brand Guidelines first.

7. Copyright, Reporting and Notice & Takedown Policy

7.1. Mobile Motion respects the intellectual property rights of others and expects users of the Service to do the same.

7.2. If you discover any content on the Service that you believe infringes your copyright, please report this to us in writing including the following information: a statement that you have identified content on the Service that infringes your copyright or the copyright of a third party on whose behalf you are entitled to act; a description of the copyright work that you claim has been infringed; a description of the content that you claim is infringing and exact details of where on the Service the content that you claim is infringing was found; your contact information including your full name, address and telephone number and a valid email address on which you can be contacted; a statement by you that you have a good faith belief that the disputed use of the material is not authorized by the copyright owner, its agent, or the law; and a statement by you that the information in your notice is accurate and that you are authorised to act on behalf of the owner of the exclusive right that is allegedly infringed. In addition, if you wish for your notice to be considered as a notice pursuant to the United States Digital Millennium Copyright Act 17 U.S.C. §512(c), please also include the following: a declaration, under penalty of perjury, that you are the owner or authorised to act on behalf of the owner of the exclusive copyright that is allegedly infringed; and your electronic or physical signature (which may be a scanned copy).

7.3. Your notice should be sent to us or our designated copyright agent by email to [email protected] or by mail to the following address:

7.4. If you discover any content on the Service that you believe infringes any of your other proprietary rights (including but not limited to trademarks, or rights of personality), please report this by following the above guidelines and send your notice to [email protected] or by mail to the above mentioned postal address.

7.5. If you receive or encounter sound recordings or other content which you find offensive via the Service, or you believe a user is in violation of these Terms and/or the
Privacy Policy
, we recommend contacting the relevant user directly and attempting to reach a mutually agreeable solution. If this does not result in a satisfactory outcome, please report it to us via email to [email protected] or, if in relation to a sound recording available on the Service via the relevant sound recording’s “Report” link. You understand that we may forward your notification to the author of the allegedly infringing content for a counter statement. We also reserve the right to transmit a user’s contact data to a rights owner who has substantiated an infringement by such user for the purposes of enforcing its statutory rights.

8. Advertising

The Service may contain advertising and we may display advertising to you in conjunction with your use of the Service.

9. Privacy

All personal data that you provide to us in connection with your use of the Service is collected, used and processed by us in strict accordance with applicable data protection laws and our
Privacy Policy.

10. Third Party Services

The Service includes and links to features and services (including but not limited to, social applications like Facebook and WhatsApp) that are provided by a third party. We do not control such third party sites or services and are not responsible for the content or functionality of such sites or services. Our inclusion of links does not imply any endorsement or association with their operators. The terms applicable to the use of such third party services will apply and we will not be responsible for anything that is done by you or the third party service provider in connection with your use of their service.

11. Termination

11.1. We may suspend or terminate your use of and access to the Service at any time and for any reason, in our sole discretion, including if we cease to provide the Service. Such suspension or termination shall be without prejudice to (and not be deemed a waiver of) any other claims that we may have against you. We shall use our reasonable endeavors to notify you in advance of any suspension or termination.

11.2. You may terminate your use of the Service at any time by deleting your account. Please note that, deleting the App from a device will not delete your account and profile, and any User Content that you have uploaded will remain on the Dubsmash Service. If you wish to delete your account and profile, please follow the instructions available at
Account Deletion.
Please note that if you delete your account, all User Content will automatically be deleted.

11.3. In the event of such termination by either party, these Terms will terminate, but the following provisions will continue to apply: Sections 4, 6, 7, 9, 10, 12, 13 and such other provisions which by their nature survive a termination.

12. Representations and Warranties

12.1. You promise to us that: your User Content will not infringe the rights of any third party, including any intellectual property rights, rights in confidential information or rights in privacy; you have obtained all necessary permissions and consents from any persons appearing in User Content; and your User Content will comply with these Terms.

12.2. Subject to Section 13 of these Terms, you agree to indemnify, compensate and hold us harmless for any losses or costs incurred as a result of any willful or negligent breach by you of these Terms including reasonable legal fees. You will not be required to compensate us under this Section if your breach of these Terms arises out of our negligence or our breach of these Terms.

13. Disclaimers and Limitations

13.1. YOUR USE OF THE SERVICE IS ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE SERVICE AND ANY CONTENT OR MATERIAL DISPLAYED ON THE SERVICE IS PROVIDED WITHOUT ANY GUARANTEES, CONDITIONS OR WARRANTIES AS TO ITS ACCURACY, SUITABILITY, COMPLETENESS OR RELIABILITY. WE WILL NOT BE LIABLE TO YOU FOR THE UNAVAILABILITY OR FAILURE OF THE SERVICE.

13.2. WE EXPRESSLY EXCLUDE OUR LIABILITY FOR ANY LOSS OR DAMAGE ARISING FROM THE USE OF THE SERVICE BY ANY PERSON IN CONTRAVENTION OF THESE TERMS. YOU UNDERSTAND THAT DUBS, SOUND RECORDINGS AND ANY OTHER CONTENT AVAILABLE ON THE SERVICE IS PROVIDED BY USERS, NOT US, AND WE ARE NOT RESPONSIBLE OR LIABLE TO YOU FOR THIS CONTENT ON THE SERVICE.

13.3. WE EXPRESSLY EXCLUDE ANY LIABILITY FOR (A) ANY LOSS OR DAMAGE THAT WAS NOT REASONABLY FORESEEABLE BY US AND WHICH IS INCURRED BY YOU IN CONNECTION WITH THE SERVICE, INCLUDING LOSS OF PROFITS; AND (B) ANY LOSS OR DAMAGE INCURRED BY YOU AS A RESULT OF YOUR BREACH OF THESE TERMS.

13.4. TO THE FULLEST EXTENT PERMITTED BY LAW, WE SHALL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGE, REGARDLESS OF THE FORM OF ACTION OR BASIS OF ANY CLAIM. YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US IS TO TERMINATE YOUR USE OF THE SERVICE.

13.5. Nothing in these Terms shall however limit or exclude our liability for: (i) death or personal injury resulting from our negligence; (ii) intentional acts, fraud or fraudulent misrepresentation; and (iii) any other liability that cannot be excluded or limited by law.

If your habitual residence is Germany, the following Sec. 13.6 shall additionally apply:

13.6. Nothing in these Terms shall however limit or exclude our liability for: (i) Damages (a) caused by intent or gross negligence, also by our statutory representatives and vicarious agents (“Erfüllungsgehilfen”), (b) resulting from an injury to life, body or health, (c) damages resulting from a violation of a guarantee as to quality (“Beschaffenheitsgarantie”) or (d) caused by fraudulent misrepresentation (“arglistig verschwiegene Mängel”); (ii) Damages to property and financial damages (“Sach- und Vermögensschäden”) caused by slight negligence of us, our statutory representatives or vicarious agents, in the event of a violation of a contractual core duty (“wesentliche Vertragspflicht”), however limited to the amount of the damage which was foreseeable at the time of conclusion of the contract and typical, taking into account the nature of the contract (“ vorhersehbarer und vertragstypischer Schaden”). Contractual core duties are such duties whose accomplishment enables proper fulfilment of an agreement and whose observance the contracting parties may regularly rely on; or (iii) liability based on the German Product Liability Act.

14. Other Terms

14.1. We reserve the right to change these Terms at any time subject to the following provisions. When we change these Terms, we will notify you in advance, and if you do not object, or use the Service after the notification, the revised Terms will be deemed accepted by you two (2) weeks after such notification. In our notification to you, we will inform you of the revised Terms, of the above time period, the deemed acceptance, your right to object the revised Terms and possible consequences. Accrued rights shall not be affected by a change of the Terms. The above shall not apply to material changes of the scope of our Services leading to a change in the overall contractual structure (“ Vertragsgefüge”). In such event, we will inform you of the intended changes and will offer you to continue your Agreement with us subject to the amended terms.

14.2. Mobile Motion may assign, sub-contract and/or otherwise transfer any or all of our rights and/or obligations under these Terms to any company, firm or person. You may not transfer your rights or obligations under these Terms to anyone else.

14.3. Each of the provisions of these Terms operates separately. In the event that any of the provisions in these Terms are held to be unlawful or unenforceable, those provisions shall be limited or eliminated to the minimum extent necessary, and the remaining provisions of these Terms will remain in full force and effect.

14.4. These Terms and our
Privacy Policy
constitute the entire agreement between you and us and supersede all prior and contemporaneous agreements or communications.

14.5. No person who is not party to these Terms may enforce any term of it.

14.6. These Terms and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with German law, with the exception of the provisions on the conflict of laws.

14.7 The parties hereby submit to the exclusive jurisdiction of the Berlin courts to settle any claim or matter arising in relation to these Terms or its subject matter or formation (including non-contractual disputes or claims).